FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2014] FCA 1315

THE COURT ORDERS THAT:

1.    The documents at tabs 1, 30, 35, 68, 114, 163, 223, 251, 285, 286, 287, 288 and 314 in Part B of the Court Book are inadmissible.

2.    Pursuant to s 136 of the Evidence Act 1995 (Cth), the documents at tabs 87, 117, 228, 236, 311 and 317 in Part B of the Court Book are admitted for the limited purpose of constituting evidence of the fact the document was made or published and represented the views of the author(s) at the time.

3.    The remainder of the respondents’ objections to documents are not upheld.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The Commonwealth and the State have objected to a series of documents, which Mr Spencer seeks to tender as part of his case. Most of the documents on which the parties seek to rely are currently contained in a Court Book compiled at the Court’s direction by the Commonwealth. The objections relate to documents in that Book. It appears Mr Spencer now wishes to rely on further documents, which he has told the Court number “less than 10”. He has not yet produced a list of those documents to the respondents and the Court, nor the documents themselves. The parties have agreed that any objections to those documents will be dealt with separately. This ruling follows my ruling on the admissibility of affidavit evidence, and some exhibited documents, to which objection was taken: see Spencer v Commonwealth [2014] FCA 1288.

2        The Commonwealth took a series of specific, document by document objections to more than 30 documents in the Court Book. The State adopted the Commonwealth’s submissions as to each document, but then also made a separate submission that, aside from a small number of documents which were inadmissible by reason of s 16 of the Parliamentary Privileges Act 1987 (Cth), the following approach could be taken:

Equally, the Court’s reasons in the affidavit judgment and subpoena judgment substantively address, and dispose of, most of the objections that State would wish to take to the Applicant’s documentary evidence. Consistently with the approach suggested by those judgments, the State respectfully suggests that the expedient course may be that:

(a) the Court would admit all of the Applicant’s documents in the Court Book – apart from the three exceptions noted below;

(b) the parties may take it that any objections of a character previously addressed in the Court’s reasons are covered by the existing rulings;

(c) the Respondents are not taken to have conceded the admissibility of each document so admitted;

(d) the Respondents may make final submissions as to the relevance of, probative value of, and weight to be given to, those documents, including by reference to considerations that might ordinarily affect the admissibility of a document;

(e) statements of opinion would generally be treated as submissions and not as evidence of the matters discussed.

3        The Commonwealth has said in its written submissions that, apparently in addition to its specific objections, it is “content” with the suggested approach of the State.

4        I do not propose to adopt the approach suggested by the State, and extracted above. There is some inconsistency in my opinion between the respondents taking specific objections on a document by document basis and a suggestion all the documents can be admitted save for those inadmissible under s 16 of the Parliamentary Privileges Act. I have approached the objections on the basis that both respondents make specific objections to specific documents in the Court Book, which renders the suggestion in (a) above inappropriate.

5        I also do not consider it appropriate for the respondents to have the Court proceed on the basis of the position outlined in (c) above. Both respondents have, after considering their positions, objected to certain documents (more than 30 in number), as listed in the Commonwealth’s written submissions and included as a table at the end of these reasons for judgment. On those documents, obviously the respondents have not “conceded” any admissibility.

6        Otherwise, the respondents have not objected to the admissibility of any other specified documents in the Court Book. Whether this is for their own forensic purposes, or because they took into account the underlying approach in the ruling on the affidavit evidence, or both, is not a matter for the Court. The Commonwealth submitted that it framed its specific objections in light of my evidentiary ruling concerning the objections to Mr Spencer’s affidavit material. It also submitted, however, that the Commonwealth “formally” maintained its objections to the affidavit material (despite my ruling) and further submitted that those objections “formally” maintained apply to “many of the documents in the Court book” without specifying which documents this submission referred to.

7        Aside from the specified objections, I consider the approaches of both the State and the Commonwealth to the admissibility of documents are problematic in their generality. It is not possible to ascertain which documents (of the hundreds in the Court Book) these submissions are directed towards. If the respondents intended to make broad and generalised objections of that kind, I do not consider them to be properly made and I do not propose to consider them further.

8        As to (e), I do not propose, on some generalised and unspecified basis, to treat statements of opinion in documents in the Court Book, wherever they might be found, as submissions. If there are particular statements in documents admitted into evidence which are relied upon by Mr Spencer, and which the respondents submit should only be treated in this way, then these can be identified as part of final submissions. My ruling on the affidavit evidence contemplated this could occur in relation to specific objections to the affidavit evidence and, provided there is some particularity about the matter in final submissions, it can occur in relation to the documentary evidence as well.

9        As to the respondents’ submissions made in (d), it is possible to read the last part of that submission (“considerations that might ordinarily affect the admissibility of a document”) as seeking to cavil with, or qualify, the Court’s ruling on the affidavit evidence. The position I adopt in this ruling is that the respondents, like the applicant, can make submissions on probative value and weight in relation to all documents which have been admitted into evidence. There is no need to qualify that position in the way the respondents have sought to do.

10        The respondents’ specific objections fall into the following categories.

Relevance

11        There are objections on the grounds of relevance to policy statements, correspondence and documents published by the federal government dealing with the environment, when these statements or documents are not related to the four intergovernmental agreements impugned in this case, nor are they pleaded as being related to the alleged “informal agreement” between the Commonwealth and New South Wales. They are, it is submitted, too removed to even be considered background to the four intergovernmental agreements in issue.

12        There are objections on the grounds of relevance to various international agreements, United Nations policy statements and reports to the United Nations or other bodies. These documents, the respondents submitted, represent non-binding agreements, or go to Australia’s reporting and other activities at an international level. Some, it was submitted, are purely international documents without any particular focus on Australia.

Opinion

13        There are documents described as “third party opinions”, published sometimes as a submission to government, sometimes in journals and sometimes in the media, expressing views about the nature, desirability and impacts of vegetation clearance controls.

14        The respondents also submit some of the documents of this kind are objectionable on the grounds of relevance. I propose to deal with those objections together.

Mr Spencer’s submissions

15        I will attempt here to summarise, as best I can, my understanding of the way Mr Spencer put not only his response to the objections, but how he explained the relationship of these documents to his claim in this proceeding.

16        Mr Spencer submitted that the previous intergovernmental agreements and national environmental policy statements were relevant to the way he put his case for two purposes. First they gave the historical and contextual background to the four impugned intergovernmental agreements. He submitted that these other policies and agreements showed the development of policies by the Commonwealth (rather than the states) that were about sustainable development, environmental protection and greenhouse gas emissions. These earlier polices and agreements “locked” the states and territories in to the environmental retention of vegetation. He submitted this shows the start of a “Commonwealth initiative” where it was dealing with vegetation clearance in its own right because of environmental issues. These agreements were, he submitted, the start of the Commonwealth “instructing” the states as to what to do, for the Commonwealth’s purposes. These earlier policies and agreements are, he submitted, the precursors to the arrangements he seeks to impugn. He made it clear that he did not seek to impugn the validity of any of these earlier agreements or policies.

17        On the international documents, he submitted they were background to the Kyoto agreement, and demonstrate that Kyoto is really all about sustainable development and not the environment. This is a distinction Mr Spencer made on several occasions in his submissions. The distinction he submits is important because it illustrates that the Kyoto protocol, and the steps taken domestically by Australia to implement it, were not simply about the “environment” but were about sustainable development which in turn requires property — especially land and what grows on the land — to be seen as a community rather than a private resource. That, he submits, is why the Kyoto protocol and its domestic implementation is actually all about the removal property rights from individual landowners.

18        On the “third party opinion” documents, it was clear during submissions that Mr Spencer had not understood the operation of the opinion rules, so far as they apply to the opinions of individuals who have written scientific or learned papers but are not called as witnesses. That operation was explained to him during submissions. He informed the Court that, having had it explained to him, he did understand its operation, but he expressed significant disappointment at the consequences of the operation of that rule for some of the material on which he wished to rely. In particular, the document behind tab 87 in Part B of the Court Book, which is entitled “Vegetation Clearing and Greenhouse — A preliminary assessment of benefits of ending land clearing in Australia to curb greenhouse gas emissions”, by N Ryan of the World Wide Fund for Nature Australia, was said by Mr Spencer to be “critical” to his case in terms of the figures it set out about the contribution to curbing greenhouse gas emissions from ending land clearing.

19        The respondents’ concessions about the limited basis on which a document such as this could be admitted were explained to him. I have decided to admit documents such as the one behind tab 87 on that limited basis, as I set out below.

20        I note, however, that evidence of a similar nature to that in the Ryan article appears in other documents which will be admitted without qualification. Those documents could be used to prove the truth of their contents. The question of the proportion of emissions reductions attributable to ending land clearing was also the subject of evidence given by Dr Evans and Mr Sturgiss earlier in the trial. If Mr Spencer sought to submit (although he did not use this language) his case was irretrievably and fundamentally prejudiced by the non-admission of these documents as truth of their contents, given the nature of his pleaded case, I do not accept that proposition.

RULINGS

First category of documents: federal documents dealing with other federal agreements or policies

21        I do not accept the respondents’ submission that other federal agreements, correspondence about the drafting of those other agreements and other documents relating to those agreements are not relevant to any of the issues raised by Mr Spencer in this proceeding. Mr Spencer’s submissions, that these documents provide the policy framework and “initiative” for the impugned agreements about vegetation clearance that are at the centre of this case, may or may not be accepted ultimately, and may or may not be important to the determination of the issues in this proceeding. Similarly, his submissions that these earlier policies and agreements provide evidence of the first moves by the Commonwealth to control, for its own environmental purposes, land clearing carried out under state regulatory regimes, may or may not eventually be significant.

22        Although he has not used these terms because he is not a lawyer, it is clear that Mr Spencer is seeking to mount a case about the existence and nature of arrangements between the Commonwealth and New South Wales which is built on circumstantial evidence, and he will ask the Court to draw inferences based on that circumstantial evidence. In my opinion, taking into account all the circumstances of this case, to which I have referred in detail in earlier interlocutory judgments, he should be permitted to do this.

23        These earlier federal environmental policies and agreements are, in my opinion, sufficiently connected by the subject matter and development of the impugned intergovernmental agreements and the impugned legislation, that Mr Spencer should be able to rely on and refer the Court to them, just as the State seeks to do the same about the development of its vegetation clearing control policies: see at [48] below.

24        The document behind tab 31 is one over which I had some doubts about whether it fell into this category. On reflection I am not sufficiently persuaded it should be excluded. It is a policy statement by the Prime Minister of the day. In that sense, there is no material difference between such a policy statement, and a media release of the kind the State seeks to tender (see the document behind tab 206).

25        This ruling deals with the documents at tabs 31, 32, 37, 38, 40, 86, 94 and 97.

26        In terms of agreements to which one or more of the four intergovernmental agreements expressly refer, there is an additional basis for their admission in my opinion. One example is the document behind tab 33 — the intergovernmental agreement on the environment. Where there are references in one or more of the four impugned intergovernmental agreements themselves to other agreements, in my opinion those other agreements should be before the Court so that the entire intergovernmental agreement, which is in issue, can be understood. That is the case with the intergovernmental agreement on the environment. This finding applies to the documents at tabs 33 and 165.

Second category: international documents, Australian documents related to international environmental issues

27        In his submissions, Mr Spencer characterised his reliance on these documents as assisting to set the scene, so to speak, for the development of the Kyoto protocol. He submitted that he sought to use these documents to establish that at the international level, the control and reduction of greenhouse gas emissions had been a matter of international concern well prior to Kyoto, and that the debate had shifted from wholly environmental concerns to control of development by property owners under the framework of the concept of “sustainable development”.

28        I accept the respondents’ submissions that these documents have no relevance to the issues in the proceeding. This proceeding takes as a fact, indeed a critical fact, the signature by Australia of the Kyoto protocol in 1998, its ratification in December 2007 and its entry into force so far as Australia’s obligations under it were concerned in March 2008. The applicant’s claims take as critical facts the emissions commitments made by Australia under that treaty. In interpreting the treaty (if such an exercise need be undertaken in this proceeding) the Court adopts the approach in Art 31 of the Vienna Convention on the Law of Treaties, interpreting the treaty in the light of its text, context and purpose: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 252-256 per McHugh J, and may consult the travaux preparatoires for these purposes: Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 93-96 per Gibbs CJ, at 191-192 per Wilson J; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [33]-[34] per Gummow ACJ, Callinan, Heydon and Crennan JJ.

29        The international documents on which the applicant seeks to rely, and to which objection is taken, cannot conceivably be relevant to that exercise. The applicant has given in opening submissions his perspective on the history of the development of the Kyoto protocol and the Court has those submissions before it. These documents are not in my opinion relevant in any other way to the issues in this proceeding. Documents about Australia’s reporting of its compliance with its obligations under the Kyoto protocol will be admitted into evidence without objection.

30        This ruling affects documents behind tabs 1, 30, 35, 68, 223, 287 and 314.

Third category: third party opinions

31        Consistently with the approach taken on the affidavit ruling, I accept the respondents’ submissions that these kinds of documents are not to be admitted to prove the truth of their contents, or the truth and accuracy of the opinions expressed. Rather, in my opinion they are admissible to provide the context and background for the public debate which framed the four impugned intergovernmental agreements, and which contributed to the enactment of the federal and state legislation impugned in this proceeding. Their use should be limited to constituting evidence of the fact those statements (or reports, or submissions) were made and represented the views of the authors at the time — those matters being at least relevant as context and background to understand the debate about native vegetation clearance controls and the conclusion of the intergovernmental agreements, together with the legislative regimes those agreements contemplated. There will be a ruling pursuant to s 136 of the Evidence Act that they are admissible for that purpose only. In my opinion, they have relevance to that extent.

32        This ruling applies to the documents behind tabs 87, 117, 228, 236, 311 and 317.

33        The documents behind tabs 251 and 285 are also outside the time period traversed by Mr Spencer’s allegations and are not relevant even in this limited sense. The document behind tab 251 is an opinion piece published in a newspaper. It has no relevance in and of itself. The objections to these documents should be upheld entirely.

Parliamentary privilege

34        The respondents submitted four documents were inadmissible by operation of s 16(2) of the Parliamentary Privileges Act. They were the documents behind tabs 163, 283, 286 and 288.

35        Sections 16(2)-(3) of the Parliamentary Privileges Act provide:

16 Parliamentary privilege in court proceedings

…

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

…

36        Section 16(3), together with the definition in s 16(2), has a broad operation, and imposes an absolute prohibition on the admission of evidence which comes within its terms.

37        The document behind tab 163 is entitled “Joint Standing Committee on Treaties: Inquiry into the Kyoto Protocol — Submission by Commonwealth Government Departments and Agencies” and is dated September 2000. Its admission is clearly prohibited by s 16(3) as Mr Spencer seeks to use the document to prove the truth of what is stated in it, or to question the truth of what is in it (or perhaps both, in relation to different parts of the document). It is within the meaning of “proceedings in Parliament” in s 16(2)(c).

38        The document behind tab 283 is a March 2010 document and is entitled “Submission to the Senate Inquiry: The Impact of Native Vegetation Laws and Legislated Greenhouse Gas Abatement Measures on Landholders”, from the New South Wales Farmers’ Association. There is a question whether this document has been published elsewhere, and independently, by the New South Wales Farmers’ Association, in a way which might affect the application of the prohibition in s 16(3). The evidentiary basis for this has not yet been established, but it appears it can be established through a witness called by Mr Spencer, Mr Armstrong, who was President of the New South Wales Farmers’ Association at the relevant time. The Commonwealth has sought some time to consider this issue, which is appropriate. I propose to defer ruling on the admissibility of this document until the Commonwealth has made submissions on this issue, and until Mr Spencer has had an opportunity to adduce evidence from Mr Armstrong about whether the document was separately and independently published by the New South Wales Farmers’ Association.

39        The document behind tab 286 is then Senator Bob Carr’s first speech as a federal senator, in March 2012. Its admission in evidence is clearly prohibited by s 16(3).

40        The document behind tab 288 is a document produced by the Parliamentary Library entitled “Timeline of Australian Climate Change Policy — Parliament of Australia”. It is dated 2 December 2013. The respondents submit and I accept it is on its face a document prepared by the Parliamentary Library. In the end notes, the document states “This work has been prepared to support the work of the Australian Parliament using information available at the time of production.” The respondents submit this means it is a document prepared “for purposes of or incidental to the transacting of the business of a House or of a committee” within s 16(2) and therefore prohibited from being admitted by s 16(3).

41        The statement at the end of this document, together with the origin of the document as something produced by the Parliamentary Library, is sufficient to characterise the preparation and production of the document as an “act done” for purposes at least incidental to the transacting of business of a House of Parliament. That is the plain meaning of the words at the end of the document.

42        The content of the document, in terms of the chronology, can probably be put together from other evidence before the Court in any event.

Miscellaneous matters

43        The document behind tab 114 is a newspaper report entitled “Hill Tells States to Clear Less or Lose Out”. It concerns remarks attributed to Senator Robert Hill in January 1998, who was the then federal Minister for the Environment. The subject matter of the article is the federal grants to the states (especially to New South Wales and Queensland) under the Natural Heritage Trust. There are assertions of fact in the article which in my opinion are likely to be able to be established by Mr Spencer, if he wishes to do so, through other admissible evidence in this case. As I understand it, the central purpose for which Mr Spencer seeks to tender the article is to prove that, in fact, the Commonwealth threatened to cut funding to New South Wales and Queensland otherwise available under the Natural Heritage Trust scheme if those states did not improve their land clearing rates. This alleged threat, as I understand it, is said by Mr Spencer to be evidence of the control exercised by the Commonwealth through its funding arrangements.

44        The respondents’ objection on the basis of hearsay should be upheld. There is no conceivably applicable exception. This is not witness evidence and cannot be tested in cross-examination. Prior to the trial commencing, I refused leave to issue a subpoena to Senator Hill because, on the material before me at the time of the application, I did not consider the material demonstrated any apparent relevance to the case put by Mr Spencer. Allegations of the kind now articulated by Mr Spencer can be put to Dr Kemp, another former federal Environment Minister who has been ordered to appear to give evidence. Indeed, there would be nothing preventing Mr Spencer asking Dr Kemp about the assertions in this article, nor about whether he had knowledge of anyone (including Senator Hill) saying on behalf of the Commonwealth that it would withhold funding from the states unless the states made their native vegetation clearance regimes more severe, or enforced them more rigorously, or however it is that Mr Spencer seeks to put this part of his case.

45        Included in the specific documents to which objection was taken was a new document presented to the respondents by Mr Spencer, which he submitted supported some evidence he had given himself about the calculation of areas of land where the land undulates to a considerable extent. The respondents have foreshadowed an objection to this document. The Court has not seen the document. It is to be dealt with when Mr Spencer gives the respondents a complete list, and copies of, the additional documents which he seeks to tender. This is currently scheduled to occur by 4 pm on Friday 5 December 2014.

The respondents’ documents

46        As a matter of fairness, given Mr Spencer is self-represented, I ask the respondents to assure the Court that the objections they had taken to Mr Spencer’s documents were not objections that applied equally to documents on which the respondents sought to rely.

47        The Commonwealth gave that assurance, subject to pointing out that there were a number of documents that could be seen as “third party opinion” documents. Those documents are behind tabs 259, 260, 262, 265, 266, and 267 in Part B of the current version of the Court Book. They are all documents about the wind farm proposal for Mr Spencer’s land. Senior counsel for the Commonwealth cross-examined Mr Spencer about some of these documents. I am satisfied these documents fall into a different category from those sought to be relied on by Mr Spencer and over which I propose to make a ruling under s 136 of the Evidence Act. The wind farm documents are particularly about Mr Spencer’s farm.

48        The State gave the Court a similar assurance, subject to two matters. First that there were several additional documents it did not seek to rely on, and second that there were also a number of documents in the Court Book that the State did seek to rely on which were “third party opinion”. Those documents are behind tabs 46, 47, 74, 194, 199, 202, 203, 206, 208, 245 and 325 in Part B. The submission made about these documents was that they were tendered for the purpose of proving historical events, leading to the various steps taken by New South Wales in controlling the clearing of native vegetation in that State.

49        It is presently unknown how the State might seek to use these documents in submissions but they are clearly relevant. The State is correct to identify these documents as, at least, contextual documents in the development of the State’s vegetation clearance control regime. In my opinion they are capable of establishing not only the historical “event” — namely, that there was such a report and what its subject matter was — but also establishing the information, and opinions, available to the New South Wales government at the time about issues relating to native vegetation clearing. Some documents (such as the one behind tab 74) appear to represent the views of the New South Wales government at the time, because it is a White Paper, distributed for community consultation and comment.

50        A further example is the document behind tab 47 entitled “Native Vegetation Protection and Management in NSW: Information paper”. It is dated December 1995 and is stated to have been produced by the New South Wales Department of Land and Water Conservation. In the Foreword, the Director-General of the Department of Land and Water Conservation describes the purpose of the information paper as follows:

This Native Vegetation Protection and Management Information Paper summarises the extent of clearing and places a perspective on various mechanisms which may be used to protect and manage our native vegetation for the future. It outlines the phases associated with the introduction and implementation of the SEPP No. 46. The purpose of this paper is to provide individuals, community groups and industry groups with some background information on why SEPP No. 46 is needed and why it has been introduced.

51        In my opinion, just as it is appropriate for the State to rely on such documents as part of the context for the legislation, agreements and policies which are at the centre of this case, so it is appropriate for Mr Spencer to be able to engage in a similar exercise, especially in relation to the federal government documents, agreements and policies on which he seeks to rely. How far any of those documents take either party will be a matter for final submissions, however in my opinion they should form part of the evidence before the Court so that the intergovernmental agreements, state and federal legislation which are in issue are seen in full context.

CONCLUSION

52        The following table reflects my decisions on the objections:

Associate:

Dated:    4 December 2014